PEOPLE v. LATIMORE (2008)

 On appeal from an order determining that he is a level three risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.), defendant contends that Supreme Court violated his due process rights by relying on the case summary prepared by the Board of Examiners of Sex Offenders.   We cannot agree with the People that defendant waived his contention, inasmuch as he objected to the procedures used in generating the case summary (cf. People v. Wragg, 41 A.D.3d 1273, 838 N.Y.S.2d 755, lv. denied 9 N.Y.3d 809, 844 N.Y.S.2d 785, 876 N.E.2d 514).   We conclude, however, that defendant's contention lacks merit (cf. People v. David W., 95 N.Y.2d 130, 138, 711 N.Y.S.2d 134, 733 N.E.2d 206).   Defendant was presumptively classified as a level two risk based upon the total risk factor score on the risk assessment instrument, and he further contends that the court erred in assessing additional points under risk factors seven through nine, resulting in a level three classification.   Even assuming, arguendo, that the court erred in assessing various points, we conclude that the court's upward departure to a level three risk is based on clear and convincing evidence of aggravating factors not adequately taken into account by the risk assessment guidelines (see People v. Abdullah, 31 A.D.3d 515, 516, 818 N.Y.S.2d 267).

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

MEMORANDUM: